holding that the Board did not err in considering a claimant’s pre-injury misconduct, which resulted in the claimant’s termination, in affirming a WCJ’s modification of benefits
How later courts described this case
- holding that the Board did not err in considering a claimant’s pre-injury misconduct, which resulted in the claimant’s termination, in affirming a WCJ’s modification of benefits
Written by the judges who cited it.
The opinion
CONCURRING AND DISSENTING OPINION BY
Judge McGINLEY.
I concur in part and dissent in part to the majority opinion. I concur with the affirmance of the Board’s determination that Claimant waived any issue with respect to the modification of benefits pursuant to the Impairment Rating Evaluation. Claimant did not raise this issue before the WCJ.
I respectfully dissent to the majority’s conclusion that Employer did not have to provide proof of available work in order to suspend benefits under Kachinski. I believe that Brandywine controls. As the majority states, this Court held in Brandy-twine:
[WJhen a claimant has proven a disabling work injury, ie., a loss of earning caused by a work injury, then pre-injury grounds for firing the claimant cannot act as a superseding cause of a claimant’s loss of earnings and relieve employer of having to show job availability in order to obtain a suspension of benefits. In as much as Brandywine Mazda fired Asman for poor job performance which occurred prior to the injury, the Board properly concluded that benefits could not be suspended absent proof of available work.
Brandywine, 872 A.2d at 257.
That is precisely the situation here. Claimant established that she suffered a work-related injury. Employer fired Claimant for conduct which occurred prior to her injury. Consequently, Employer was required to establish proof of available work in order to suspend benefits under Kachinski.
The majority asserts that Reyes is closer factually to the present case than is Bran-dywine. The majority asserts that Bran-dywine is inapplicable because Employer only learned of Claimant’s misconduct after her work injury and swiftly addressed it. When Employer learned that police officers had discovered two empty narcotics containers Employer promptly investigated Claimant’s narcotics recordkeeping and fired her shortly thereafter.
While Reyes did involve a claimant whose employer did not learn of the misconduct until after the employee was injured, I believe that the majority relies too much on Reyes. Clearly, that portion of the opinion which addressed Brandywine *1264 was dicta. Before this Court, Robert Reyes (Reyes) contended that he was entitled to disability benefits from the date of injury until the employer’s medical witness, Dr. Noble, examined him. Reyes contended that Dr. Noble opined that he was limited to light duty work after the accident. Reyes then asserted that because Reyes’s misconduct preceded his work injury the employer was required to show the availability of light duty work. This employer failed to do. Our Court rejected Reyes’s argument that he established disability through Dr. Noble’s testimony. Because he never established disability the Court did not need to reach the Brandywine issue. This Court did say that the case was not governed by Brandywine because the employer fired Reyes as soon as it learned of his misconduct. While it does distinguish Brandywine, I believe it did so as dicta. The last paragraph of the analysis states, “In any case, Claimant’s [Reyes] Brandywine argument also fails because, as explained above, he never proved a disability, the threshold to a Brandywine inquiry.” Reyes, 967 A.2d at 1078.
I believe that Brandywine controls.